Wisconsin judge dismisses felony charge in ‘ballot selfie’ case

A Wisconsin judge on Monday dismissed a felony charge against a school board candidate who had posted a photograph on Facebook of a ballot with his name filled in.

In his ruling, the judge, Paul V. Malloy of Ozaukee County, threw out the count of voter fraud against the man, Paul H. Buzzell, 52, a former school board member in Mequon, a suburb of Milwaukee, who was voted back onto the board during an election in April, online court records show.

Malloy ruled on a motion to dismiss by Buzzell’s lawyers, who argued that the state law prohibiting so-called ballot selfies was overly broad and violated the constitutional guarantee of free expression.

“What is at stake is branding a politician a felon for declaring to the world that the politician displayed” a marked ballot “showing a vote for himself in an election,” the motion said. Burrell would have faced a maximum possible sentence of 3 1/2 years in prison and a $10,000 fine had he been convicted. He would also have been banned from running for elected office.

The case reflects the debate among states over selfies of ballots and of people showing how they vote. Some legislators have argued that public displays of marked ballots can be used to influence voters in an election or to promote vote buying. Others, including the American Civil Liberties Union, say such laws banning voting selfies on social media restrict free speech.

Under Wisconsin law, it is an election fraud violation for a person to show his or her marked ballot to someone else, or to mark a ballot so that it is identifiable as his or hers. It is one of at least 18 states that have laws prohibiting selfies displaying a voter’s marked ballot.

In 2020, the Wisconsin Senate passed a bill to legalize ballot selfies, but the state Assembly failed to pass a bill that would eliminate the statute, The Associated Press reported.

According to a criminal complaint, Buzzell, 52, published a photograph on Facebook of a marked ballot on March 27 before an election for the Mequon-Thiensville School Board. Witnesses reported the post to the Mequon Police Department as a case of possible election fraud, the complaint said.

The photograph of the ballot showed the oval next to Buzzell’s name filled out as well as that of another candidate, Jason P. Levash, court documents show. Levash serves as the school board’s vice president, and Buzzell serves as treasurer. “He displayed a marked ballot showing a vote for himself,” Buzzell’s lawyer, Michael Chernin, said Tuesday, adding that Buzzell indicated that the ballot in question was his daughter’s.

Buzzell, when contacted by police on April 2, said that “his understanding was that it was not illegal to post a photo of a ballot with his name on it,” the complaint said. He cast his own ballot in person on April 5, according to the complaint.

While the dismissal means that the prosecutors’ case cannot move ahead, The Milwaukee Journal Sentinel, which reported Monday that the charges had been dropped, quoted the Ozaukee County district attorney, Adam Gerol, as saying that he would ask the attorney general to decide whether to file an appeal or issue an opinion.

“It’s in the AG’s hands,” said Gerol, a Republican. He did not immediately reply to a message left at his office Tuesday.

The office of Josh Kaul, the attorney general, said in a statement Tuesday that the Wisconsin Department of Justice would review the district attorney’s request and “proceed appropriately.”

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